News & Politics » Feature

Who Let the Dog Out?

U.S. marine Valentine Underwood had been accused of rape and his superiors knew it, but that didn't stop him from getting off base and to the party where he raped and murdered two women. Why can't a grieving mother make the government pay for its mistake?

by

3 comments

In August 1991, 15-year-old Mandi Scott and her friend Rosalie Ortega were raped and murdered by a Marine Corps basketball star named Valentine Underwood. The crimes, documented at Underwood's trial, were committed at Ortega's apartment in the desert town of Twentynine Palms, California, home of the largest marine base in the world.

According to a splashy book by journalist Deanne Stillman, Scott frequently baby-sat for the 20-year-old Ortega, but they partied together too. Ortega's apartment was a gathering place for a motley assortment of gangbangers and marines, and Scott spent part of the night fending off the advances of a drunken, cracked-out Underwood. Sometime after dawn, probably around 7:30, Underwood raped and murdered Scott and Ortega, stabbing each exactly 33 times with an 11-inch kitchen knife.

After the murders Underwood--number 33 on the base basketball team--caught a ride to an away game at a distant military base, leaving behind a bloody handprint and his DNA in each of the young women. He showed up late for the game with a grisly wound on his hand. Three days later he was arrested.

It seemed like an open-and-shut case, but thanks to the efforts of three successive defense lawyers, a series of postponements and transfers delayed Underwood's trial for six and a half years. During that time he sat in the San Bernardino County jail. Meanwhile, Debie McMasters, Scott's mother and a former Twentynine Palms bartender, was hearing ugly details about his past that eventually convinced her the Marine Corps should have kept him on a shorter leash.

A year and a half after her daughter and Ortega were murdered, McMasters, who now lives in Streamwood, met Tammy Watson, the daughter of a Marine Corps sergeant major. Watson had accused Underwood of rape about a month and a half before the murders, and during the ensuing investigation the local sheriff's department had questioned him on the base in the presence of military investigators. Watson said her father told her that he'd personally reported her story to Underwood's superiors, who'd told him the marine would be restricted to the base. Nevertheless, Underwood was allowed to leave, and he wouldn't be charged in Watson's rape until after the murders.

"All I knew was that somebody had to assume responsibility for what this marine did," says McMasters. "When you're a marine, you're a marine 24 hours a day. You're supposed to act accordingly. And at 7:30 on a Friday morning, why aren't you on base?"

McMasters believed that Underwood's conviction was only a matter of time, but she wanted to make the Marine Corps pay for what she saw as its negligence. She didn't know just how tricky it is to sue Uncle Sam, and her resulting lawsuit, which she's now pursuing in Chicago, became snarled in a thicket of legal arcana that isn't covered in Stillman's book. Her suit demonstrates how difficult it can be to compel the federal government to even respond to charges of negligence.

In most cases the U.S. government is immune from being sued when its employees screw up on the job. The Federal Tort Claims Act does allow injured parties to sue in rare instances, but mostly, even in cases where a private employer would be liable, it gives the government broad protection. When a federal employee commits assault or battery, for example, the government can't be held liable. One particularly broad FTCA defense the government can use is the "discretionary function exception," which essentially bars claims if an injury resulted from judgment calls not specifically directed or prohibited by official policy--if, say, a postal carrier deviated from his route to get coffee and hit a child with his truck.

McMasters, who had no legal training, was oblivious to such fine points. She thought it was clear that the Marine Corps had been negligent. So on July 30, 1993, a day before the two-year statute of limitations ran out, she sent her son to the Marine Corps' legal department on the Twentynine Palms base with a standard government claim form asking for $5 million for the death of her daughter.

As the criminal case against Underwood dragged on, McMasters met Deanne Stillman, who began working on an article about the case for Los Angeles Magazine. Stillman uncovered more evidence indicating that the Marine Corps had been negligent. In the late 80s, before he enlisted, Underwood had been arrested and charged with rape on two separate occasions, but the marines took him anyway.

Underwood hadn't been convicted in either case, and one could argue that the Marine Corps, needing more than a few good men, makes a mission of turning around questionable ones. But given his history and given that he was under investigation for Tammy Watson's rape, didn't the marines have a responsibility to keep a close watch on him?

Apparently the military's lawyers didn't think so. Just over a year after McMasters filed her claim, they rejected it, arguing that the U.S. military could not be held liable for Mandi Scott's murder because Underwood had never been restricted to base and because, using the logic of the FTCA's discretionary function exemption, at the time of the murders he was on liberty and therefore wasn't acting within his official duty as a marine.

Once the military denied her claim, McMasters was free to file a civil suit in federal court against the U.S. government, again claiming negligence. She searched but couldn't find an attorney willing to take her case. "Common sense tells you no attorney wants to go against the government," she says. So she proceeded on her own, taking help where she could get it. In early 1995 Stillman, who was still researching her story, filed the suit on McMasters's behalf at the federal courthouse in Los Angeles, and McMasters served notice to the marines at Twentynine Palms that she'd filed a suit. She didn't know that federal rules required her to also serve notice to the U.S. attorney general and to the U.S. attorney's office in the district where the suit had been filed, the office that would have responsibility for the government's side of the case.

Robert Timlin, the judge assigned to the civil case, soon sent McMasters a letter asking her to demonstrate why her case shouldn't be dismissed, since not all of the relevant parties in the government had received notice of her suit. Still working without a lawyer, she didn't understand who hadn't received notice, but she also knew she wouldn't have a case until Underwood was convicted, so she simply sent back a handwritten note asking for an extension. The judge granted it.

A little over a year later, in April 1996, McMasters moved to the Chicago area to be with her boyfriend and to be closer to her other daughter, who lived in the Quad Cities. Through a telephone referral service she met Brian Holman, a young plaintiff's attorney working in the Loop who was impressed by how tenaciously she'd pursued her case. He told her he and his partner didn't have the money to try a case on the west coast, but he offered his advice and tried, unsuccessfully, to find her an attorney in California.

Meanwhile, Underwood still hadn't gone to trial, so McMasters kept asking Judge Timlin to extend her civil case, and he kept granting the extensions. In June 1996 a court clerk told her she needed to serve notice of her suit to Attorney General Janet Reno (one of the two parties she'd failed to serve in 1995), the commandant of the Marine Corps, and the Department of the Navy, which oversees the marines. McMasters served all of them, and for good measure sent notice to President Clinton and the secretary of defense. "I'm just a bartender," she says. "I just assumed that all these people are connected, and they all needed a notice of service--and they all got copies of the paperwork." But she still hadn't realized she ought to serve the U.S. attorney's office.

In December 1997 Underwood was finally convicted, then sentenced to two life terms. McMasters again served notice of her civil suit to all the parties she'd served previously. No one from any government agency had ever responded to her lawsuit, so, believing she'd done everything properly, she filed a motion, with Holman's help, asking the judge to decide the case in her favor by default. By this time she'd figured out the role the U.S. attorney's office was supposed to play in her case, and she sent the office, along with everyone else on her list, a copy of the motion. Lawyers from the U.S. attorney's office responded by saying that she'd failed to properly serve their office three years earlier and therefore the judge should dismiss her case.

McMasters and Holman say that even if she never specifically served the U.S. attorney's office there was no way the government didn't know about the suit. McMasters claims she even talked on the phone about the case with the assistant U.S. attorney assigned to it. The judge was sympathetic. He said that by replying to McMasters's motion, the U.S. attorney's office had demonstrated that it knew of the case even if it hadn't been served directly. He wouldn't outright decide the case in McMasters's favor, but he told the U.S. attorney to consider himself served, citing a Ninth Circuit precedent. For some reason he didn't tell McMasters to serve the U.S. attorney herself.

At that point, the U.S. attorney's office might have been forced to deal with the substance of McMasters's suit, but a few weeks later she asked to have the case transferred to the Northern District of Illinois in the U.S. Seventh Circuit, where she lived. She figured most of the marines she would ask to testify had left Twentynine Palms by then anyway, and most of her evidence had already been gathered during Underwood's criminal trial. Besides, Holman had agreed to take the case on a contingency basis if it moved closer to home. Timlin, reasoning that the government could defend itself just as easily in Illinois as in California, granted the transfer, and the case came to Chicago.

A year later, in March 1999, Maria Simon, the assistant U.S. attorney on the case in Illinois, filed a motion to dismiss it before Judge George Marovich. She made several formidable legal arguments. For one thing, the government wasn't responsible for Mandi Scott's murder because it followed an assault and battery, something the government clearly wasn't liable for under the FTCA. For another, the marines responsible for the recruitment, enlistment, and retention of Underwood were all making judgment calls not specifically prohibited by official policy--the discretionary function exception again--which also exempted the government from liability.

Simon also argued that the case should be dismissed because McMasters had never served papers on the U.S. attorney's office in California--even though Timlin had already decided that issue in McMasters's favor before the case was transferred. Holman was surprised that Simon was bringing up the issue again given that Timlin had made a decision on it. "One minute it's good," he says, "and the next minute it's not?" But the law states that if a decision is "clearly erroneous" it can be reconsidered, and that's just what Simon argued. She said Timlin had the right to extend the length of time McMasters had to serve the U.S. attorney, but he had no right to excuse her from serving the attorney altogether.

Holman wasn't worried about that argument, because Timlin had backed up his ruling with precedent. He was looking forward to fighting over the substance of the matter--the government's responsibility--and that same day he filed his own motion for summary judgment. "We know we can't hold them responsible for the actual murders," he says. "But we can hold them responsible for their own negligence. Were they negligent in allowing him to do what he did? I think the answer is clearly yes. They were negligent in letting him become a marine. When the Watson rape occurred they were negligent in not holding tighter restrictions on Underwood." Holman thought he and McMasters had amassed enough evidence--they'd even discovered that Underwood's basketball coach knew he was at Ortega's house when he should have been on the bus going to the game--that Marovich could rule in their favor without a trial.

A flurry of briefings and motions from both sides followed. Then in February 2000, Marovich was given senior status on the bench; he passed the case to a second judge, who passed it to a third, Judge Charles Kocoras, a few weeks later. Kocoras took just one month to decide in favor of the government and dismiss McMasters's case. But to Holman's dismay, he didn't address any of the thorny immunity issues. He dismissed the case simply because, five years and thousands of pages of court documents earlier, McMasters hadn't served notice of her suit to the U.S. attorney's office in California; Judge Timlin's decision to rule in McMasters's favor on that issue, he said, was "clearly erroneous."

"Come on," says Holman. "That's such an easy way out. Rule on the merits of the case--let her have her opportunity to have her day in court." He asked Kocoras to reconsider, arguing that under federal transfer law, the law of the court making the transfer should apply, not the new court's, that the only thing that had changed was the venue, not the law.

Simon responded by citing her own battery of case law and arguing that Timlin had relied on a precedent that didn't apply. Kocoras agreed, and Holman was forced to appeal.

Last February Holman made a series of complex arguments before a three-judge panel in the Seventh Circuit's Court of Appeals. He was delving into gray areas of federal transfer law he believes have never been addressed, and he says he took a beating. For one thing, he says, chief judge Richard Posner was incredulous at his argument that the Seventh Circuit couldn't reconsider the Ninth Circuit's ruling on how McMasters had served notice.

The judges took their time making a decision, and on August 14 they backed up Kocoras, writing, "While a court must give a plaintiff reasonable time to cure a defect in service...nothing in the Federal Rules of Civil Procedure allows a judge to excuse service altogether....Although this may seem overly formalistic, 'the Supreme Court insists that federal judges carry out the rules of procedure, whether or not those rules strike the judges as optimal.'" Rules were rules. Timlin could have told McMasters to serve the U.S attorney when he made his ruling, but he didn't, so she was out of luck.

Holman was disgusted, insisting they'd dismissed the case on a technicality. He was especially irritated because he believed that if the case had stayed in California no one was likely to have questioned again how McMasters had served notice. "It wasn't an issue in the Central District of California," he says. "No one cared there."

The U.S. attorney's office is unapologetic. "There's no question that these criminal acts were a tragedy for this family," says spokesman Randall Samborn. "But to perceive somehow that this case was decided on quote unquote a technicality, thus depriving someone of vindication of their substantive rights, I think misses a fundamental issue. To ignore a threshold issue like service of process or jurisdiction is to ignore the fundamental basis of litigation in our society." And Simon notes that because the U.S. attorney's office in California first learned of the case three years after it was brought, they were at a distinct disadvantage, so she had to raise the issue. She won't speculate about whether the issue would have come up again if the case had stayed in California.

Neither McMasters nor Holman is ready to quit. He requested a rehearing before the entire 15-judge court of appeals to reconsider the ruling, but it was denied earlier this month. He now plans to petition the U.S. Supreme Court to hear the case, a prospect he relishes. He says the court would be reviewing some novel issues concerning federal transfer orders, but he's frustrated that the central issue of McMasters's case--the Marine Corps' responsibility for the actions of a soldier it knew had serious problems--still wouldn't be considered. "Ten years after the murders and the only issue that's been addressed in her civil case is service of process," he says. "The purpose of service is to give defendants notice that they're being sued. How can the United States say that they didn't have notice that they were being sued in this case? It's asinine. If I lost in the substantive issues--'Counsel, good try. But immunity, you can't sue the government on this'--I think both me and Debie McMasters would say, 'Hey, we had a tough case. We gave it a shot, and we lost.' But if you want to tell Debie McMasters 'Your service wasn't quite perfect,' then you're not even going to address the merits of her case. And she'll never know whether she'd have won or lost."

Art accompanying story in printed newspaper (not available in this archive): photos/Lloyd DeGrane.

Comments (3)

Showing 1-3 of 3

Add a comment
 

Add a comment